Terry v. Cheesecake Factory Rests., Inc.
253 N.C. App. 216
N.C. Ct. App.2017Background
- Plaintiffs (Lee and Kristen Terry, on behalf of their minor daughter) sued The Cheesecake Factory Restaurants, Inc. in Durham County Superior Court for negligent servering of a cheesecake that allegedly contained nuts, causing their daughter to be hospitalized.
- Complaint alleged plaintiffs are citizens/residents of North Carolina but did not specify county; it alleged Cheesecake Factory does business in Durham County and elsewhere and identified a restaurant at Crabtree Valley Mall (in Wake County) as the site of the incident.
- Defendant moved under Rule 12(b)(3) to dismiss or transfer for improper venue, arguing parties resided in Wake County and Cheesecake Factory’s registered office is in Wake County.
- At hearing, the trial court denied dismissal but transferred the case to Wake County. Plaintiffs appealed that interlocutory order.
- Defendant had a certificate of authority and maintained a registered office in North Carolina (making it a ‘‘domestic’’ corporation under N.C. law), and in responses to plaintiffs’ requests for admission admitted it conducts business activities and maintains equipment in Durham County at a specified address.
- The Court of Appeals held Durham County was a proper venue because the defendant maintains a place of business there, so the trial court erred in transferring venue as a matter of right; the appellate court reversed and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Durham County is a proper venue | Venue is proper because Cheesecake Factory maintains a place of business in Durham County under N.C. Gen. Stat. § 1-79(1) | Venue is improper because plaintiffs reside in Wake County and the incident occurred at Crabtree Valley Mall (Wake County); thus case should be transferred | Held: Durham County is a proper venue; defendant admitted it conducts business and maintains a place of business in Durham County, so trial court erred in transferring venue as a matter of right. |
Key Cases Cited
- Snow v. Yates, 99 N.C. App. 317 (discusses interlocutory appealability of venue rulings)
- Carolina Forest Ass'n, Inc. v. White, 198 N.C. App. 1 (distinguishes mandatory venue transfer under § 1-83(1) from discretionary transfers under § 1-83(2))
- Stern v. Cinoman, 221 N.C. App. 231 (reviews venue determinations under § 1-83(1) de novo)
- Ford v. Paddock, 196 N.C. App. 133 (notes that venue review looks to plaintiff's allegations but other verified record materials may be considered)
- Construction Co. v. McDaniel, 40 N.C. App. 605 (trial court may accept or reject affidavits when ruling on venue change)
- Kiker v. Winfield, 234 N.C. App. 363 (considers verified discovery responses when determining proper venue)